4.2.4
Unsubstantiated requests 

In some decisions, it has been observed that unsubstantiated auxiliary requests cannot be considered in appeal proceedings.

Under Art. 12(2) RPBA, the statement of grounds of appeal and the reply must set out the parties' complete case. In particular, it must be set out why it is requested that the decision under appeal be amended or upheld. Taken as a whole, the RPBA make it clear that appeal proceedings are primarily written in nature, with Art. 12(2) RPBA requiring that the parties' complete case be submitted at the outset. The purpose of this provision is to ensure fair proceedings for all concerned and to enable the board to start working on the case on the basis of both parties' complete submissions. In inter partes proceedings, both rights and obligations should be divided equally among the parties so that the board can perform its independent judicial function (T 217/10, T 1732/10, T 1890/09).

In T 217/10 the board observed that it was not only for the appellant to substantiate its appeal but equally for the respondent to show at an early stage why it considered that the objections raised in the grounds of appeal did not withstand scrutiny. If auxiliary requests were submitted, reasons usually had to be given to explain how they overcame those objections (at least if this was not obvious from the amendments made). In the case in question, the auxiliary requests had not been accompanied by any reasons, so it was not immediately apparent to the board how they could overcome the objections raised. The board therefore refused to consider them.

In T 1732/10 the board held that not reacting in substance to the appeal of the opponent, but waiting for the board's preliminary opinion before any substantive reaction is filed, is regarded as an abuse of procedure. This is all the more so if the substantiation for all the requests, which were filed after summons to oral proceedings have been sent, is filed only shortly before the oral proceedings before the board. Such requests – which are not self-explanatory – are considered by the board as submitted only on the date of their substantiation. Such very late requests are contrary to procedural economy, do not take account of the state of the proceedings and cannot be reasonably dealt with by the board without adjournment of the proceedings or remittal to the department of first instance, contrary to Art. 13(1) and 13(3) RPBA (see also T 1134/11).

In T 1836/12 the board held that filing new requests without addressing all the points raised in the annex to the summons to oral proceedings made the procedure inefficient, contrary to the principle of procedural economy. Simply filing unsubstantiated requests did not overcome any objections that had already been raised by the board in the annex to the summons or that were to be expected in the light of the contested decision. Given the lack of substantiation, the board had informed the appellant well in advance that the admissibility of these new requests would have to be discussed at the oral proceedings and that they would be considered filed only on the date of their substantiation (T 1732/10).

In T 1890/09 the board concurred with the previous case law and held that unsubstantiated requests were to be disregarded under Art. 12(4) RPBA because the requirements under Art. 12(2) RPBA were not met. In the case in question, no reasons supporting the auxiliary requests had been filed either with them or at a later stage. In the board's view, it was therefore unnecessary for it to exercise its discretion under Art. 13(1) RPBA and examine whether or not these auxiliary should still be taken into consideration (similarly T 1732/10, T 162/12, T 1836/12).

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